The Issues: Legal Recognition

More limited progress has been made in advancing legal recognition of parenting and children. The Civil Partnership legislation is largely silent on children and family law in Ireland more broadly provides limited recogntion of diverse families, including families headed by same-sex couples.

The implications of lack of recognition of same-sex parenting, especially for the children being parented by same-sex copuples has been highlighted in a range of reports, including  Report of the Government (Colley) Working Group on Domestic Partnership. the Colley Group highlighted two legal obstacles in particular:

  • The first is that since joint adoption is restricted to married couples, same-sex couples who have children cannot provide those children with the protection this legal relationship ensures. The negative implications of this for children being parented by a same-sex couple are apparent in situations where adoption would be the most appropriate mechanism for investing both partners with parenting rights and responsibilities. For example, Colley notes that lesbian and gay couples who have jointly fostered a child and who subsequently become eligible to apply for adoption have to make an arbitrary decision as to which partner will apply for adoption and who will relinquish any legal connections to the child. Thus the child, who had two foster parents, is only entitled to one parent.
  • The second key legal obstacle is that under current legislation, it is only possible for someone with a biological connection with a child to apply for legal guardianship of that child. This means that although a same-sex couple might jointly and equally parent a child from birth, there is no mechanism to allow the non-biological parent to take on any of the rights and responsibilities attaching to the parental role (2006:17).

These limitations, Colley notes, pose many problems for lesbian and gay parents and their children. For example:

  • Children are excluded from the protection and legal obligations of their non-biological parent towards them in terms of inheritance, maintenance and other benefits.
  • In the event of the dissolution of a relationship or in the event of the death of the legal parent, the child/children can be separated from their second parent, who has no legal connection to their child/children but who may have co-parented the child/children from birth (2006:17). Equally, the child could be separated from the family of their non-biological parent, for example, this partner's parents, who may have played a significant role in the life of the child as de factor grandparents but who have no legal link or connection to their de facto grandchild.
  • More day to day difficulties arise because the second parent has no legal connection with their child. For example, the non-biological parent may not be able to sign a consent form for medical treatment in the event of the other parent being incapacitated or unavailable. Similar issues arise in relation to registering a child for school and barriers to travel arising from non-recognition of the second parent

These issues are the same as those highlighted by the Law Reform Commission in its Report on Legal Aspects of Family Relationships as applying to step parents who have taken on a parenting role but where there is no provision for them to make an application for guardianship/parental responsibility or for the biological parent or parents of a child to confer guardianship on them.